The case for reviewing an odd review
The efficiency of the state’s employment tribunal is under examination. In this opinion piece written for InDaily, TGB Senior Lawyer and Business Advisor, Morry Bailes questions why.
https://indaily.com.au/opinion/2023/02/09/the-case-for-reviewing-an-odd-review/?utm_medium=email&utm_campaign=InDaily%20Lunchtime%20%209%20February%202023&utm_content=InDaily%20Lunchtime%20%209%20February%202023+CID_5c4cc3ade1eb9ab09dedd2d22aa2026e&utm_source=EDM&utm_term=READ%20MORE
There is trouble brewing on North Terrace, but not in the place you would ordinarily expect.
A little further west from Parliament House sits the South Australian Employment Tribunal (SAET for short). It is the Tribunal that deals with all workers compensation and state-based industrial disputes in South Australia.
Two reports are presently in existence, or about to be. The first, authored by ‘progressive’ think tank the McKell Institute that has Labor Party connections, has concluded that our state workers compensation system statistics on injured workers successfully returning to the workplace is worse than the nation’s average. Apparently we are worse than New South Wales, although in July 2022 the McKell Institute published a report about the NSW workers compensation scheme called, ‘It’s Broken’, so perhaps a comparison with NSW is not the way to go after all.
The second review has been commissioned by our Attorney-General, who is also Minster for Industrial Relations and the Public Sector. It is essentially about the efficiency of the SAET and curiously, the ability of parties to collect debts arising from SAET orders. This was evidently an election promise made by the Government when in Opposition. Exactly to whom the promise was made is a bit of a mystery. One might infer it was to some in the trade union movement.
It is an odd review. Section 8 of the SAET Act proclaimed in 2014 as a result of extensive reform by the former Labor Government, sets out the objects of the Tribunal. They are much more than just about speed and cost. Unsurprisingly they include such requirements such as ‘natural justice and procedural fairness’, keeping language and procedures as simple as possible, maintaining high quality standards in decision making, being transparent and accountable, being flexible and not too formal as well as many other objects. You will appreciate that efficiency is not always compatible with all of the other objects of the Tribunal. Sometimes efficiency must give way to some of the other objects, especially when dealing with unrepresented people, of whom there are many in this jurisdiction.
But stranger still is the fact that according to the Tribunal, it is in fact efficient. Indeed it may be the most efficient court in the state. Between 5500 and 6000 applications are lodged with the Tribunal each year. That is more than all the originating civil proceedings lodged in the Supreme Court and District Court combined.
The marker of efficiency is how many are concluded. 100% is ideal. In other words, if you close as many applications as are commenced in 12 months, that is regarded as the best indicator of efficiency. Now here are the figures. According to the President of the Tribunal, Justice Steven Dolphin, in a judgment published last December called Cavuoto he said:
‘On the topic of SAET’s efficiency, in our most recent Annual Report, SAET reported that, notwithstanding a 19% increase in applications received in the Return to Work Act jurisdiction (read Workers Compensation jurisdiction) that a clearance rate of 99% was achieved’.
Not bad, not bad at all. In the financial year past, the Tribunal actually closed more matters than it received applications. ‘Admirable’ indeed. So what on earth are we using taxpayers dollars for and putting everyone to the trouble of making submissions about efficiency, when the Tribunal on its numbers in fact can’t do much better?
On the subject of submissions and as we would expect, the Law Society of South Australia made submissions to Government. Without trying to over simplify it, the Society said the problem is one of resources to the Tribunal. It’s a bit unclear what resources the Tribunal is lacking. It has a full quota of decision makers, and whilst historically it may have been under done on personnel, it’s fine now. The Tribunal itself says it doesn’t need more resources.
But has anyone bothered to ask it? Apparently not. There has been little or no consultation with judicial members of the Tribunal since the commencement of the process.
The Law Society also suggested reducing affidavit evidence, that is evidence in written form. Generally it is going to be pretty hard to convince anyone that oral evidence over affidavit evidence is going to improve efficiency, although that may not be the Society’s argument. What affidavit evidence does do in a jurisdiction without pleadings is tell the parties what the other one is going on about. It tells your opposition what’s in issue, which is particularly useful for employers in particular, who are often in the dark about what an injured worker is actually alleging. So I am unsure about the argument that we should compromise what has become established process in the Tribunal, nor whether that would create greater efficiency.
The Law Society further advocates for the introduction of a docket system in certain circumstances: that is, one judge on the case from beginning to end. I am a fan of the docket system but it works best in linear pieces of litigation. There is a question, given the often multi-faceted nature of workers compensation claims where there can exist multiple simultaneous disputes, whether a docket is the best way to go, but let’s keep an open mind.
Speaking to legal practitioners versed in the area, a couple of themes emerge. The first is that realistic timeframes for the production of affidavit evidence may actually be the real source of the contention in that area. Second, sometimes the initial process of conciliation may take longer than necessary. However, with the recent appointment of a brace of new Commissioners whose job it is to conduct conciliation conferences, those problems are expected to resolve if they haven’t already done so.
Judicial members often offer trial dates that are so immediate that the parties themselves can’t get the trial ready on time and are obliged to ask for later dates, so the Tribunal trial diary is certainly not a problem.
One legal practitioner practising in the jurisdiction eventually mused, ‘I really don’t think it’s that inefficient’. And there we have it. What on earth are we doing all this for? What’s the mischief in the first place? Why bother?
Naturally the Law Society is going to make a submission and turn its collective mind toward what could make a system better. But when the starting proposition makes you think there is a problem to begin with and when that appears to be wrong-headed from the get go, it’s going to colour the way in which submissions are framed and made.
As to workers not returning to work on a comparable basis with the national average, there are a few things to say. The NSW workers compensation scheme according to McKell is ‘broken’. From first hand experience speaking to legal practitioners in that state, its scheme is brutal to workers in comparison to South Australia. The same can be said for Queensland, also held up as ‘better’ than SA. Well, they are certainly better at cutting off a worker’s entitlements earlier, leaving a worker with little alternative but to find work of some kind. But whether that means injured people in this state are worse off is very open to debate. The fact is that a small number of injured workers simply will not return to work, and the Return to Work Act contemplates that, because it now allows not only for compensation for permanent impairment but also future economic loss, which is in essence a common law principle.
There is also the approach by our public sector to allowing workers to return to work in this state. Consider a case heard by the Tribunal’s Deputy President Judge Tony Rossi. The case proceeded to trial on the 13th and 14th December last year. Judge Rossi handed down his judgment on the 19th of January. Incidentally, in the judicial world that is what would be described as efficient. His order was that the worker be returned to suitable work. She is an employee of the state of South Australia, so surely there is every reason, you would think, for the state to do the right thing and prove the McKell Institute wrong.
Unfortunately at the time of publication of this article, Judge Rossi’s order has not been complied with. The employee has not been returned to suitable work by her employer, The Department of Education, a State Government agency – notwithstanding Judge Rossi’s order to do so. So who exactly needs to be reviewed here? The Minister concerned is not only Minister for Industrial relations but the Public Sector. When numbers speak for themselves and the problems faced in the Tribunal have been spelt out concisely by its judicial members, perhaps it’s time to ask them.
So what do their published judgments say? Back to Cavuoto, and President Dolphin makes it crystal clear that if there is a problem of delay in the Tribunal, as inevitably there will be from time to time, it is this. A worker if permanently impaired is entitled to a lump sum for their permanent impairment. However the extent of permanent impairment needs to be assessed by an ‘accredited’ medical assessor. A Labor government created this system in 2014 and it has a problem. As President Dolphin made clear in his judgment, there are not enough accredited assessors in the system. It’s not the doctors’ fault. But there is a problem. President Dolphin put it thus:
‘The tribunal is not aware of the reasons for why there is a relatively small amount of accredited assessors within certain categories. However as this case demonstrates, if an injured worker has chosen an accredited assessor who is part of only a small pool within the relevant category, and that practitioner is also perhaps busy with the usual patient treatment lists, then long waiting times can be expected’.
In that case President Dolphin understandably was very concerned that Mr Cavuoto was going to have to wait eight months for an accredited specialist to assess him. He thought that was unacceptable, as he should.
But therein lies the point. It is not an inefficiency within the Tribunal that is the problem. It is the system of accreditation required to assess workers, set up by the former Labor government, that is causing the principal delays. You don’t need a review to tell you that, it’s all there in black and white. The judges of the Tribunal could not have described their challenges more clearly than you will find in their many judgments.
As to debt collection which is the second point to the inquiry, this is virtually a non-issue; a red herring. We can’t seriously be having a Government-commissioned review into collecting debts. If you have an impecunious party before the Tribunal, what exactly is it supposed to do about it? The only court that is properly set up for debt collection is the Magistrates Court. It’s one of the things it does. Why on earth would you try to replicate the complexity of that system to collect the very few unpaid debts that exist in the South Australian Employment Tribunal? It’s like a definition of bureaucratic madness. Recreate a mature and evolved system that exists entirely in one jurisdiction in another, that has never collected a debt ever, nor has it in any earlier iteration of that court going back to beginning of things, just because? Please, spare us. No more need be said.
Behind this, one suspects, is another example of kowtowing to the trade union movement or some in it. This is a government led by a former trade unionist in a Parliament where finding a member who has ever been self-employed is like stumbling across the Cullinan diamond.
As to the jurisdiction, it is unusual in that it can deal with the very minor disputes, say a dispute over one medical bill, to claims that may be worth millions. How one might handle one claim versus another is obviously going to be dictated by the size and complexity of the claim. As much as one may wish to homogenise a jurisdiction, each case needs to be treated on its own facts and circumstances. That’s the system of justice that the former Labor government gave us when it enacted the Return to Work Act and the South Australian Employment Tribunal, and accords with the Tribunal’s final objective, flexibility and ‘adjusting its procedures to best fit the circumstances of a particular case’.
To tamper with things again would not be viewed as beneficial to injured workers in this state, especially when only now do we have some settled jurisprudence in this area of law. And the South Australian Employment Tribunal is efficient enough, or at least would be if it didn’t have to contend with the distraction of unnecessary reviews to please some in the labour movement.
The only good outcome from this pointless exercise is for the government to leave a functioning system alone. In a Harvard Business Review article entitled ‘Change for Change’s Sake’ the authors say ‘…the idea that (an organisation) might want change for its own sake often provokes skepticism. Why inflict the pain if you don’t have to?’ We can only hope the Attorney-General and Minister for Industrial Relations and the Public Sector agrees.